The FCC's Investigation of "Subliminal Techniques:"From the Sublime to the Absurd

Press Statement
September 19, 2000

Harold Furchtgott-Roth
Commissioner
Federal Communications Commission

A casual observer of media coverage over the past week of an advertisement,
sponsored by the Republican National Committee, might reasonably come to the
following four conclusions:

The advertisement clearly violates well-established FCC rules.

The advertisement contains what the FCC has determined to be a "subliminal"
message.

The FCC has authority to regulate advertisers, such as the Republican National
Committee.

The FCC's investigation of this matter is both ordinary and routine.

None of these conclusions is correct.

The FCC has no formal rules on "subliminal" advertising.

The FCC has no formal rules on the use of "subliminal perception" techniques. In fact,
the Commission appears to have addressed the issue only twice. In 1974, the agency
issued a policy statement that the use of "subliminal perception" is "contrary to the
public interest." But policy statements are not enforceable rules. Nor would it be
appropriate for the Commission to fine a person for failure to comply with a policy
statement.

Since 1974, there has been only one instance in which the Commission has received and
acted on a "subliminal" message complaint. In that matter, KMEZ(FM) a radio station in
Dallas, Texas, was merely "admonished for its repeated transmission of subliminal
messages on November 19, 1987" during an anti-smoking program on behalf of the
American Cancer Society.

The FCC has no rules on what is, or is not, a "subliminal" message. Consequently,
there is no basis for it to determine whether any advertisement contains a
"subliminal" message.

In the past 26 years, the FCC has acted upon only one complaint about "subliminal"
techniques in television. It has never before considered such a complaint in the context
of political advertising. Consequently, there is no precedent, much less clear and
established rules, to guide the Commission's evaluation of a complaint about
"subliminal" messages in a political advertisement on television. There is certainly no
basis for Commissioners or Commission employees to speculate regarding what
Commission standards might be for "subliminal techniques" in a political television
advertisement. In short, the Commission has no basis even for drawing a conclusion
about whether the commercial sponsored by the Republican National Committee comes
within the category of "subliminal perception" techniques.

The Commission has no authority to regulate advertisers, such as the Republican
National Committee.

Federal law authorizes the FCC to regulate its licensees, such as broadcasters. The
Commission does not regulate advertisers. Thus, to the extent that the Commission's
1974 policy statement on "subliminal techniques" has any force, it is only with respect to
broadcasters. Consistent with this principle, the 1974 statement plainly places the
responsibility of compliance on broadcast licensees, not advertisers.

The FCC action is neither ordinary nor routine.

Last Friday, the FCC sent letters to a large number of broadcast licensees, directing the
broadcasters to submit information on the broadcasting of the advertisement placed by
the Republican National Committee by the end of this week. The letter makes no
mention of the unusual, if not unprecedented, nature of both the complaint and the
request for information.

For one thing, the Commission's lightning swift response to allegations of a violation of
an obscure and rarely used policy statement, in a case where there are no formal
guidelines, is nothing short of extraordinary. The FCC has many virtues; expeditious
resolution of petitions and complaints is not a consistent one. Some Commission
proceedings have gone on for more than ten years. The Commission's responses to court
decisions vacating or remanding FCC rules are usually measured in months, not weeks or
days. By way of comparison, the Commission took five months to act the only other
time it has considered a violation of its policy regarding "subliminal" advertisements,
issuing a letter in May 1988 regarding an advertisement aired in November 1987. It is
most decidedly not the norm for the Commission to have acted so hastily here, within
hours of receiving a complaint.

It is difficult to understand the basis for--or to predict the outcome of--the current inquiry
into "subliminal techniques." The Commission has embarked on an unpredictable and
hasty proceeding, with no clear precedent to guide it. It is an awkward proceeding for the
Commission to defend in the best of times; the weeks before a national election are
unlikely to be the best time for a proceeding on political advertising.

* For more information regarding this release, contact Bryan Tramont in the Office of
Commissioner Furchtgott-Roth at the FCC - Btramont@FCC.gov or 202-418-2000.